SC CrimCC judge outlines legal positions of the Supreme Court on procedural peculiarities of obtaining electronic evidence within the framework of international legal assistance and its use in criminal proceedings

Electronic evidence obtained as part of international legal assistance can both strengthen the prosecution's case and completely lose its evidentiary value - it all depends on compliance with procedural standards. Svitlana Yakovlieva, Judge of the Criminal Cassation Court of the Supreme Court, spoke about the complex but vital aspects of such evidence at the training ‘International Cooperation in Criminal Proceedings’.

In her speech, the judge emphasised that the admissibility of such evidence depends on the cumulative compliance with several key conditions: it must be obtained on the basis of a proper request for international legal assistance, collected by an authorised body of a foreign state on behalf of Ukrainian investigative authorities, and executed in accordance with the requirements of both an international treaty and the CPC of Ukraine.

The Supreme Court has repeatedly emphasised that failure to comply with even one of these requirements may cast doubt on the admissibility of evidence. For example, in its resolution of 21 April 2021 (case No. 712/48/15-κ), the Court stated that using materials from covert investigative (detective) actions obtained in one proceeding in another, without proper justification or the investigating judge's permission, constitutes a procedural violation affecting the admissibility of evidence. In the context of electronic evidence received as part of international legal assistance, the Supreme Court in its resolution of 10 January 2023 (case No. 761/12730/14-к) stressed that the main feature of an electronic document is its digital form, not its link to a material medium.  Therefore, the media on which such data is transmitted from foreign partners should not be assessed in isolation, but in the context of compliance with the entire procedural chain of transmission and authentication.

The Court also pays attention to the execution of a request for international legal assistance. In its resolution of 12 June 2024 (case No. 569/1908/23), the Supreme Court recognised as evidence screenshots and video files obtained in the framework of cooperation with a foreign jurisdiction, in compliance with the rules of the Berkeley Protocol, the international standard for archiving digital information. At the same time, proper technical execution does not negate the need for procedural purity. The entire chain of transmission must be maintained and the circumstances and subjects of receipt must be recorded.

The issue of using electronic evidence from messengers or open sources in the international context has also become the subject of judicial analysis. Thus, in its resolution of 27 November 2023 (case No. 464/472/22), the SC CrimCC ruled that photo illustrations of messages sent via the Telegram messenger app, which do not identify the sender or the exact date, have no evidentiary value. At the same time, in a decision dated 21 November 2022 (case No. 991/492/19), the Court recognised the admissibility of correspondence via the Viber mobile application, provided that the technical data coincides with other evidence and the numbers are confirmed to be owned.

The Court also draws attention to the practice of handling evidence from international organisations or government platforms of other states. In its resolution of 20 May 2020 (case No. 585/1899/17), the Criminal Cassation Court held that electronic documents from such sources can only have evidentiary value if the source is identified, the integrity of the content is confirmed and there are no signs of its alteration. The practice of depositing evidence by the court (Article 225 of the CPC of Ukraine) is also important, and it can be applied to electronic materials if there is a threat of their loss or destruction. In this context, the Supreme Court emphasises the need to record each stage of the collection, transfer and preservation of such evidence, especially with the participation of foreign authorities or platforms.

In general, during her speech, Judge Svitlana Yakovlieva formulated a key principle: that international digital evidence in criminal proceedings is not just a file or document, but the entire process of legally acquiring, processing and using it.

The event was organised by the State Bureau of Investigation's International Cooperation Department.